ObamaCare Recusal

Unsurprisingly, the Supreme Court recently agreed to hear challenges to Obama’s 2010 health care legislation. The ruling, which some claim will be the court’s most important and politicized decision since Bush v. Gore, draws special significance in the context of the upcoming election year. Soon after the court’s decision to grant certiorari on ObamaCare, critics began to call for the recusal of certain Supreme Court justices, most notably Justice Thomas and Justice Kagan, and to a lesser extent, Justice Scalia. How valid are these recusal requests? Let’s take a look at the justices.

Justice Thomas

The main argument for the recusal of Justice Thomas focuses on his wife’s work as a conservative lobbyist. Until recently, Virginia (“Ginni”) Thomas was President and CEO of Liberty Central, an organization that works to repeal health care reform. In a letter drafted by former Representative Anthony Weiner, seventy-four House Democrats addressed their concerns about Justice Thomas’s involvement in deciding a case on health care legislation:

“The appearance of a conflict of interest merits recusal under federal law… From what we have already seen, the line between your impartiality and you and your wife’s financial stake in the overturn of health-care reform is blurred. Your spouse is advertising herself as a lobbyist who has ‘experience and connections’ and appeals to clients who want a particular decision – they want to overturn health-care reform. Moreover, your failure to disclose Ginni Thomas’s receipt of $686,589 from the Heritage Foundation, a prominent opponent of health-care reform, between 2003 and 2007 has raised great concern.”

Although Virginia Thomas left Liberty Central last year, she became the head of a firm, Liberty Consulting, just a few months later. Liberty Consulting claimed to “use Ginni’s ‘experience and connections’ to help clients with ‘governmental affairs efforts.’”

Justice Kagan

The circumstances surrounding Justice Kagan’s potential bias prove to be a little more complicated. Justice Kagan served as U.S. Solicitor General (appointed by Obama) from March 2009 until her confirmation as a Supreme Court justice in 2010. Part of her job as Solicitor General was to prepare the federal government’s defense to the initial challenges to health care legislation. Justice Kagan, however, contends that she avoided a potential conflict of interest by delegating her health care-related duties to Deputy Solicitor General Neal Katyal. At her confirmation hearing, amidst Republican concerns over her involvement in health care, Justice Kagan stated:

“I would recuse myself from any case in which I played a substantial role…This category would include cases in which I approved or denied a recommendation for action in the lower courts and cases in which I reviewed a draft pleading or participated in formulating the government’s litigating position.”

She seems to be serious about her statement. She has stepped aside in more than one-quarter of the cases heard last term.

Others point to Justice Kagan’s enthusiasm over the passage of the health care legislation and claim it represents her underlying opinion regarding the constitutionality of the health care reform.

Justice Scalia

Along with Justice Thomas, Justice Scalia recently attended a Federalist Society dinner sponsored by the law firm that will argue the case before the high court. Also present at the event? A firm that represents one of the trade associations that challenged the law, and Pfizer, which has a financial stake in the outcome of the litigation. While the Code of Conduct prohibits federal judges from attending fundraising events as a speaker or guest of honor, the Supreme Court Justices are not bound by it – they instead use as the Code of Conduct a guide for ethical behavior. Most analysts agree that critics calling for Justice Scalia’s recusal are making a losing argument.

Title 28, Section 455, of the United States Code governs recusal, stating that a judge shall recuse himself in any case in which the judge’s impartiality might reasonably be questioned. In his Year-End Report on the Federal Judiciary, Chief Justice John Roberts addresses these concerns of impartiality but validly points out that decisions to recuse are traditionally reviewed by a higher court. As no higher court can review a Supreme Court Justice’s decision to recuse, Justice Roberts emphasizes the obligation of justices to hear a case, writing, “if a Justice withdraws from a case, the Court must sit without full membership.” As a result, “a Justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure the need to recuse…”

Regardless, some argue that reassuring phrases such as “jurists of exceptional integrity” fail to address very real public criticisms about the justices, some of which originated long before the health care cases came to the forefront. By releasing a sixteen-page report in which he fails to acknowledge any specific public concerns, Justice Roberts seems to be out of touch with the public’s perception of the Supreme Court. In fact, an October 2011 Gallup poll found that U.S. Supreme Court approval has dropped to its second-lowest rating ever recorded. This approval did not vary along partisan lines, as “Republicans, Democrats, and Independents approve of the Supreme Court 50 percent, 46 percent and 44 percent, respectively.”Although no justice has hinted at recusal so far, a justice may recuse at any time until the ruling is issued.

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